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tim. Conard, The Economic Treatment of Automobile Injuries, 63 MICH. L. REV. 279, (1964); see also Conard, The Quantitative Analysis of Justice, 20 J. LEGAL EDUC. 1 (1967). The situation has not improved since then. See J. KAKALIK & N. PACE, COSTS AND COMPENSATION PAID IN TORT LITIGATION (1986); J. KAKALIK & A. ROBYN, COSTS OF THE CIVIL JUSTICE SYSTEM: COURT EXPENDITURES FOR PROCESSING TORT CASES (1982). For example, five years after settlement of the Agent Orange litigation, plaintiffs' lawyers, court-appointed officials, experts, and the company that administers the payout have received $20 million of the $180 million award, but veterans have received only $3 million. Labaton, Five Years After Settlement, Agent Orange War Lives On, N.Y. Times, May 8, 1989, at D1, col. 1.

In England, costs (plaintiffs' and defendants' lawyers' fees) averaged 154% of the damages awarded in County Court tort cases, 59% in District Registries, and 72% in the Royal Courts of Justice. INBUCON MANAGEMENT CONSULTANTS, CIVIL JUSTICE REVIEW: STUDY OF PERSONAL INJURIES LITIGATION 5 (1986) [hereinafter INBUCON MANAGEMENT CONSULTANTS]. In English medical malpractice claims, lawyers' costs consumed 85% of the plaintiffs' damages awards. See Brazier, Compensation, Competence and Culpability: The Case for a No-Fault Scheme, J. MED. DEF. UNION 8, 9 (1988); Tort System in Medical Litigation: Unfair, Unpredictable and Very Expensive, Law Society's Gazette, Mar. 30, 1988, at 4, col. 1. In response, the British Medical Association, the Law Society, insurers, and the government are considering a no-fault scheme.

[FN51]. "The fundamental goal of damage awards in the unintentional tort area is to return the plaintiff as closely as possible to his condition before the accident. This is achieved by measuring certain items of harm in past and future terms." M. FRANKLIN & R. RABIN, CASES AND MATERIALS ON TORT LAW AND ALTERNATIVES 597 (4th ed. 1987).

[FN52]. J. ADLER, W. FELSTINER, D. HENSLER & M. PETERSON, THE PACE OF LITIGATION: CONFERENCE PROCEEDINGS (1982). The problem of delay is not new. See M. SELVIN & P. EBENER, MANAGING THE UNMANAGEABLE: A HISTORY OF CIVIL DELAY IN THE LOS ANGELES SUPERIOR COURT (1984).

[FN53]. See Abel, A Bibliography of the Customary Laws of Kenya (with Special Reference to the Laws of Wrongs), 6 E. AFR. L.J. 100 (1970).

[FN54]. See N.Y. WORK. COMP. LAW § 15(3) (McKinney 1965).

[FN55]. Workers who are permanently, partially, or totally disabled receive compensation for part of their lost earnings but for nothing else. Those who suffer injuries that do not impair their productivity--for instance, loss of sexual function or sense of smell--receive nothing. Moss v. Southern Excavation, Inc., 271 Ark. 781, 611 S.W.2d 178 (1981); Fetterhoff v. Western Block Co., 49 A.D.2d 1001, 373 N.Y.S.2d 920 (1975).

[FN56]. J. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (J.H. Burns & H.L.A. Hart eds. 1970).

[FN57]. Such markets actually exist in the Third World. In Brazil, for instance, the classified pages of newspapers routinely contain advertisements by those seeking to sell their bodily organs. Freed, Desperation: Selling Your Eye, Kidney, L.A. Times, Sept. 10, 1981, § 1, at 1, col. 1. In Britain in January 1989, poor Turkish immigrants said they were paid $3500 for kidneys that then were sold to others. A West German businessman, who already sold kidneys in Germany and France for $26,000-52,000, planned to extend his operations to Britain. W. German to Sell Kidneys in Britain for Transplants, L.A. Times, Jan. 30, 1989, § 1, at 7, col. 1. Federal law prohibits organ sales in the United States. Yet the family of a thirteen-year-old boy with leukemia, who needed a bone marrow transplant, advertised in several newspapers and promised that the boy's great uncle, the wellknown head of Stanley H. Kaplan Educational Centers, would pay $5000 for a donor whose marrow matched. Kolata, Transplant Reward Offer Raises Furor, N.Y. Times, June 23, 1989, at 6, col. 1.

Economist Stanley V. Smith, an expert witness in "hedonic damages," charges $150 an hour to testify in trials about the value of experience foregone. Barrett, New Legal Theorists Attach a Dollar Value to the Joys of

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Living, Wall St. J., Dec. 12, 1988, at A1, col. 1 [hereinafter Legal Theorists].

Increasingly, courts are willing to award damages for fear, even when the victim cannot prove that physical injury occurred or indeed could have occurred, as in some cancerphobia cases. Barrett, Courts Lend Sympathetic Ear to Claims for Compensation Based on Cancer Fears, Wall St. J., Dec. 14, 1988, at B1, col. 3.

[FN58]. M. WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (1958). Victims come to see the injury as a source of potential profit. "'There's not an attorney in California that hasn't had someone walk into his office and say, "I just got hit and I want to make some money,"DDD" said Will Glennon, legal analyst for the California Trial Lawyers' Assn." But some plaintiffs' lawyers encourage this conception by sending clients to physicians known to exaggerate injuries and to submit virtually identical medical reports in each case. When a Mercedes rear-ended a Cadillac in Hollywood, eight of the nine occupants filed claims for medical expenses totalling more than $20,000, and for pain and suffering totalling more than $50,000, although there was no damage to either car. The only one who chose not to sue was the driver of the Mercedes, who admitted fault. Muir, Inflated Claims Seen as Fast Lane to Easy Money, L.A. Times, Jan. 23, 1989, § 1, at 5, col. 1.

Sometimes victims must relinquish moral vindication in order to obtain compensation. The relatives of a motorist killed in a collision with a truck driver asked the judge in the criminal trial to reduce the charge from second-degree murder to manslaughter because they stood a better chance of recovering from the accused's insurer if he acted negligently rather than intentionally. Hicks, Families of Victims Urge Lesser Penalty for Driver in Deaths, L.A. Times, June 30, 1988, § 1, at 3, col. 2.

[FN59]. See Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 509, 364 P.2d 337, 344, 15 Cal. Rptr. 161, 168 (1961).

[FN60]. See DePass v. United States, 721 F.2d 203 (7th Cir. 1983). Prudential Insurance Company of America now offers an even closer analogy. Policyholders of life insurance who submit a doctor's certificate that they have less than six months to live can cash in their policies before death. The primary purpose is to pay the astronomical costs of health care. But the money could also be used for a splurge. Lewin, To the Dying, Life Policy Can Bring Money Now, N.Y. Times, Mar. 5, 1990, at A10, col. 4; Lewin, Terminally Ill Can Collect Death Payout While Alive, N.Y. Times, Jan. 27, 1990, at 1, col. 1.

[FN61]. See Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982); Williams v. State, 18 N.Y.2d 481, 223 N.E.2d 343, 276 N.Y.S.2d 885 (1966).

[FN62]. See Zaninovich v. American Airlines, Inc., 26 A.D.2d 155, 271 N.Y.S.2d 866 (1966).

[FN63]. See Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P.2d 669, 115 Cal. Rptr. 765 (1974); Butcher v. Superior Court, 139 Cal. App. 3d 58, 188 Cal. Rptr. 503 (1983); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981).

In the latest variation on this theme, a woman has sued her gynecologist and a sperm bank for negligence in artificially inseminating her with sperm that was not her late husband's. She and her husband are white; the sperm donor apparently was black. Although the complaint was sealed, obscuring the nature of the damages claimed, she did state that she filed suit when "'racial taunting of her child became unbearable for her."DDD" Sullivan, Mother Accuses Sperm Bank of a Mixup, N.Y. Times, Mar. 9, 1990, at A16, col. 1, 3.

[FN64]. See Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968); Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984).

[FN65]. See Corrigal v. Ball and Dodd Funeral Home, Inc., 89 Wash. 2d 959, 577 P.2d 580 (1978).

[FN66]. See Johnson v. State, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638 (1975).

[FN67]. See Molien v. Kaiser Found. Hosp., 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980).

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[FN68]. See Campbell v. Animal Quarantine Station, 63 Haw. 557, 632 P.2d 1066 (1981); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).

[FN69]. See generally J. MODELL, INTO ONE'S OWN: FROM YOUTH TO ADULTHOOD IN THE UNITED STATES 1920-1975 (1989). The logical conclusion would be a progressive "natural endowments" tax on the fortunate to fund transfer payments to those who are deficient--in size, eyesight, personality, memory, or fine motor coordination--in order to repeal the maxim that "anatomy is destiny."DD'

[FN70]. See generally G. BECKER, HUMAN CAPITAL: A THEORETICAL AND EMPIRICAL ANALYSIS, WITH SPECIAL REFERENCE TO EDUCATION (1964) (discussing activities that affect future monetary income by increasing the investment in human capital).

[FN71]. G. CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 24-33 (1970). Richard Posner states this position even more bluntly:

Perhaps, then, the dominant function of the fault system is to generate rules of liability that if followed will bring about, at least approximately, the efficient--the cost justified--level of accidents and safety. Under this view, damages are assessed against the defendant as a way of measuring the costs of accidents, and the damages so assessed are paid over to the plaintiff (to be divided with his lawyer) as the price of enlisting their participation in the operation of the system.

Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 33 (1972) (footnote omitted).

[FN72]. Two recent entries in the enormous literature documenting how the social organization of regulation structures its impact on safety are Manning, Managing Risk: Managing Uncertainty in the British Nuclear Installations Inspectorate, 11 LAW & POL'Y 350 (1989) and Hawkins, 'FATCATS' and Prosecution in a Regulatory Agency: A Footnote on the Social Construction of Risk, 11 LAW & POL'Y 370 (1989).

In March 1989, the Justice Department limited the jurisdiction of the inspector general of the Labor Department to government financed programs and federal employees. John C. Martin, inspector general of the Environmental Protection Agency, criticized the ruling. He said that the EPA had become a "paper tiger" because the large reduction in penalties made it cheaper for polluters to pay fines than to reduce pollution. Gerth, Enforcement Lax, U.S. Auditors Say, N.Y. Times, Oct. 4, 1989, at A21, col. 1.

[FN73]. In 1986 three executives of Film Recovery Systems were found guilty of murder, involuntary manslaughter, and reckless conduct for the 1983 death of Stefan Golab, 61, a Polish immigrant who died of cyanide poisoning. The plant recovered silver from used X-ray film; prosecutors characterized it as a "huge gas chamber." The company president, plant manager, and foreman were each sentenced to 25 years imprisonment, but were freed on bail pending their appeal. It could be the first time a court convicted corporate officials for murder in the case of a worker death. The Illinois Appellate Court has reversed those convictions on the ground that the state-of-mind requirements for each of the three convictions were inconsistent. Job-Related Murder Convictions of 3 Executives Are Overturned, N.Y. Times, Jan. 20, 1990, at 10, col. 5.

[FN74]. See G. CALABRESI, supra note 71.

[FN75]. [T]he owner's duty . . . to provide against resulting injuries [[[should his barge break its moorings] is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. . . . [I]f the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P . . . .

United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

[FN76]. See Rhoads, How Much Should We Spend to Save a Life?, 51 PUB. INTEREST 74, 75-76 (1978). "Willingness to pay" extrapolates from actual safety expenditures. On that basis, the value of a life varies between $66,000 (desire for prompt coronary care) to $11,800,000 (desire for safer air travel). Legal Theorists, supra note 57, at 6, col. 2. See generally Moore & Viscusi, Doubling the Estimated Value of Life: Results Using New Occupational Fatality Data, 7 J. POL'Y ANALYSIS & MGMT. 476 (1988) (new research suggests that

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current value of life is twice that previously indicated).

[FN77]. When a child is permanently and seriously disabled, it is almost impossible to estimate future lost earnings over a working lifetime that has not yet begun. Similarly, dramatic changes in what medicine can achieve, and at what cost, introduce great uncertainty into long-term predictions of medical costs.

[FN78]. Competition will drive down prices, thereby forcing out of business an altruistic entrepreneur (itself an oxymoron) who spends more on safety.

[FN79]. See U.S. DEP'T OF TRANSP., THE CAR BOOK: A CONSUMER'S GUIDE TO CAR BUYING (1981). The same may be true of services. Hysterectomies are performed twice as often per 1000 women in the southern states as in New York and almost three times as often in upstate Franklin County as in New York City. Physicians believe the higher rates are medically unjustified. Kolata, Rate of Hysterectomies Puzzles Experts, N.Y. Times, Sept. 20, 1988, at C1, col. 1.

[FN80]. See P. Dorman, Compensating Wage Differentials, Occupational Health and Safety, and the Value of Human Life: An Efficiency Wage Analysis 144 (Ph.D. dissertation, economics, University of Massachusetts 1987).

[FN81]. Following the Bhopal disaster, Union Carbide fought vigorously, and ultimately successfully, to have the trial transferred to India. American manufacturers also sought congressional legislation adopting a choice of law rule that would measure the tort liability of American multinationals by the law of the host country. See Besharov, Forum Shopping, Forum-Skipping, and the Problem of International Competitiveness, in NEW DIRECTIONS IN LIABILITY LAW 139 (W. Olson ed. 1988).

Union Carbide ultimately settled all claims by paying $470 million to the Indian government. Approximately 3600 people died from exposure to methyl isocyanate; another 32 have been classified as totally disabled, 9000 as partially disabled, and 170,000 as slightly injured. Six years after the tragedy, nobody has received any part of the settlement (aside from the ex gratia payments of about $550 made to the families of the 3323 identifiable deceased). The new Indian government of V.P. Singh is seeking to reopen the matter, reviving its initial claim of $3 billion and threatening criminal prosecution. India Seeks to Reopen Bhopal Case, N.Y. Times, Jan. 22, 1990, at C1, col. 2; Hazarika, Bhopal Victims Await Money from Carbide, N.Y. Times, Jan. 31, 1990, at A4, col. 5.

After the Chernobyl disaster, West German manufacturers of radioactive powdered milk tried to sell it to Egypt; when publicity led to the cancellation of that contract, they sought to sell it to other Third World countries for animal feed. Tagliabue, A Nuclear Taint in Milk Sets off German Dispute, N.Y. Times, Jan. 31, 1987, at 1, col. 2.

In the wake of the alar scare, the United States Department of Agriculture bought $15 million of surplus apples and planned to provide them to schools, prisons, and food aid programs. Government Will Buy Apples Left over from Scare on Alar, N.Y. Times, July 8, 1989, § 1, at 6, col. 6.

[FN82]. See Williams, Race Bias Found in Location of Toxic Waste Dumps, N.Y. Times, Apr. 16, 1987, at A20, col. 1; cf. Dolan, Study Finds Perilous Level of Lead in 20% of Children, L.A. Times, June 2, 1989, § 1, at 1, col. 1.

The 250 members of the Campo Band of Mission Indians are negotiating with San Diego, 68 miles west, to accept the city's garbage. The dump would not be governed by state or federal environmental laws. The Navaho, Hopi, and other tribes have been approached by others seeking dump sites. Reinhold, Indians and Neighbors Are at Odds over Proposed Reservation Dump, N.Y. Times, Jan. 8, 1990, at A1, col. 4.

The Marshall Islands in the South Pacific are negotiating with Admiralty Pacific, Inc. to build one of the world's biggest trash heaps on 20 square miles of lagoons in the island of Majuro. For $56 million a year they would import trash from Los Angeles, San Diego, San Francisco, Portland, and Spokane. They also welcomed another proposal to establish a high-level nuclear waste dump (but subsequently reconsidered). Drogin, Paradise Lost: Now It's a Dump, L.A. Times, Jan. 11, 1990, at A1, col. 1.

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[FN83]. For an experimental simulation suggesting that laypersons misunderstand and misapply cost-benefit analysis in making judgments about "reasonable care," see Green, The Reasonable Man: Legal Fiction or Psychosocial Reality?, 2 LAW & SOC'Y REV. 241 (1968).

[FN84]. Two of the most notorious proximate cause cases illustrate this ex post reasoning. The English Court of Appeals focused on whether those who dropped a plank into the hold of a ship could have foreseen that it would strike a spark, rather than asking whether a ship transporting benzene should have taken precautions to avoid fire. In re Polemis, 1921 K.B. 560. Both Cardozo, writing for the majority, and Andrews, dissenting, focused on whether railroad employees who knocked a package onto the tracks could have foreseen that it would explode, rather than asking whether the railroad should have taken precautions to avoid a heavy scale being unbalanced by crowds or vibrations. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).

[FN85]. In 1910 the city of Rochester negligently allowed its water system to become contaminated with typhoid bacillus; 223 residents contracted the disease. The strength of the causal linkage with the defendant's negligence varied with the month in which the disease was contracted and the victim's residence. In previous years, as many as 173 inhabitants had contracted typhoid. A test case held that the plaintiff had offered enough evidence to allow a jury to find causation. Stubbs v. City of Rochester, 226 N.Y. 516, 124 N.E. 137 (1919). As a result, the defendant probably settled the cases of the 58 other claimants, some of whom it did not infect, while other causal agents were not pursued. Had the court of appeals upheld the trial judge's nonsuit, the defendant would have escaped responsibility to some people whom it did infect. See generally Dant, Gambling on the Truth: The Use of Purely Statistical Evidence as a Basis for Civil Liability, 22 COLUM. J.L. & SOC. PROBS. 31 (1988) (criticizing complete reliance on probabilistic reasoning in fact finding as unfair).

[FN86]. A customer drove his car out of a parking garage and struck a pedestrian on the sidewalk. The New York Court of Appeals dismissed the pedestrian's claim against the garage, holding that "a garage owes no duty to pedestrians in this type of case." Pulka v. Edelman, 40 N.Y.2d 781, 782, 358 N.E.2d 1019, 1020, 390 N.Y.S.2d 393, 394 (1976). "The relationship of the garage to pedestrians is . . . at best somewhat tenuous. . . .

[I]t would be most unfair to impose that duty on the garage with respect to acts of its patrons." Id. at 784, 358 N.E.2d at 1022, 390 N.Y.S.2d at 396. "If . . . liability [was] imposed in an instance such as this, it is difficult to conceive of the bounds to which liability logically would flow." Id. at 786, 358 N.E.2d at 1023, 390 N.Y.S.2d at 397. "The burden cast on the operators of these parking establishments in order to discharge their responsibilities in respect to patron-operated vehicles beyond the confines of their properties would be an impractical and unbearable one." Id.

[FN87]. A gas station that violated a municipal ordinance requiring reports of container sales greater than five gallons and forbidding container sales greater than one gallon without a permit was held liable to an arson victim whose premises were burned with gasoline obtained in violation of the ordinance. The court upheld the complaint because "it is within the permissible scope of legislation to impose liability for wrongful acts which have a practical or reasonable causal connection with injuries sustained, although the sequence of events would not satisfy the rule of proximate cause in the law of negligence." Daggett v. Keshner, 284 A.D. 733, 738, 134 N.Y.S.2d 524, 529 (1954).

[FN88]. In the typical proximate cause case, the plaintiff seeks to impose liability on a wealthy defendant who is only mildly culpable because the true culprit has insufficient resources to satisfy a judgment. See, e.g., McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 181 N.E.2d 430, 226 N.Y.S.2d 407 (1962).

[FN89]. The Nevada Supreme Court refused to apply the famous California case of Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944) to require four hotel guests who had been smoking in a room to exculpate themselves from responsibility for a fire. Fireman's Fund Am. Ins. Co. v. Knobbe, 93 Nev. 201, 204, 562 P.2d 825, 826 (1977).

[FN90]. See P. REUTER, THE ECONOMIC CONSEQUENCES OF EXPANDED CORPORATE LIABILITY: AN EXPLORATORY STUDY (1988); Eads & Reuter, Designing Safer Products: Corporate Responses to

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Product Liability Law and Regulation, 7 J. PROD. LIAB. 263 (1984); Felstiner & Siegelman, Neoclassical Difficulties: Tort Deterrence for Latent Injuries, 11 LAW & POL'Y 309 (1989); Komesar, Injuries and Institutions: Tort Reform, Tort Theory, and Beyond, 65 N.Y.U. L. REV. 23 (1990); Sanders, Firm Risk Management in the Face of Product Liability Rules, 11 LAW & POL'Y 253 (1989); Shapiro, Libel Lawyers as Risk Counselors: Pre-Publication and Pre-Broadcast Review and the Social Construction of News, 11 LAW & POL'Y 281 (1989).

[FN91]. See W. NISKANEN, BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); W. NISKANEN, BUREAUCRACY: SERVANT OR MASTER? (1973). On the way in which NASA approached the risks of the Challenger space shuttle, see Vaughan, Regulating Risk: Implications of the Challenger Accident, 11 LAW & POL'Y 330 (1989).

[FN92]. See Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 CALIF. L. REV. 677 (1985).

[FN93]. See Abel, The Real Tort Crisis--Too Few Claims, 48 OHIO ST. L.J. 443, 445-46 (1987). Medical malpractice liability illustrates two of these points: demand for medical care is relatively price inelastic, and liability costs represent only about 1% of total costs. Freudenheim, Costs of Medical Malpractice Drop After an 11-Year Climb, N.Y. Times, June 11, 1989, at 1, col. 1. For self-employed physicians, malpractice insurance increased from 3% to 4% of their gross income between 1982 and 1984; in hospitals, average malpractice costs per inpatient per day rose from $3.02 to $5.60 between 1983 and 1985. UNITED STATES GENERAL ACCOUNTING OFFICE, HUMAN RESOURCES DIVISION, REPORT NO. GAO/HRD-86-112, MEDICAL MALPRACTICE: INSURANCE COSTS INCREASED BUT VARIED AMONG PHYSICIANS AND HOSPITALS 29, 40 (1986).

[FN94]. See Daly v. General Motors Corp., 20 Cal. 3d 725, 759-60, 575 P.2d 1162, 1183, 144 Cal. Rptr. 380, 401 (1978) (Mosk, J., dissenting).

[FN95]. For psychological data on the attitudes of potential victims toward risk, see Calabresi & Klevorick, Four Tests for Liability in Torts, 14 J. LEGAL STUD. 585, 617 n.88 (1985); Schwartz, Proposals for Products Liability Reform: A Theoretical Synthesis, 97 YALE L.J. 353, 378-84 (1988).

[FN96]. Asbestos, pharmaceuticals, machinery, tools and equipment, and motor vehicles accounted for twothirds of all litigation. There was further concentration within each category: 20 companies were lead defendants in 90% of asbestos suits, 5 motor vehicle manufacturers in 60% of automobile suits, 2 manufacturers in 60% of pharmaceutical suits. By contrast, 18,000 defendants (93% of all those sued) were named only once or twice. T. DUNGWORTH, PRODUCT LIABILITY AND THE BUSINESS SECTOR: LITIGATION TRENDS IN FEDERAL COURTS vii (1988).

[FN97]. Half a year after Antonio Cipollone won the first jury verdict against a cigarette manufacturer for his wife's death, a lawyer in the Winston-Salem firm of Womble, Carlyle, Sandridge & Rice, which represents the defendant R.J. Reynolds, wrote a memo noting that an adversary had dropped 10 lawsuits because "the aggressive posture we have taken regarding depositions and discovery make [sic] these cases extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners." Glaberson, Surprise Tobacco Data: Suits Fall, N.Y. Times, Sept. 10, 1988, at 33, col. 2. See Cipollone v. Liggett Group, Inc., 693 F. Supp. 208 (D. N.J. 1988), modified, Nos. 88-5732, 88-5770, 88-5771, 88-5784 (3d Cir. Jan. 5, 1990) (Lexis, Genfed library, USApp file).

[FN98]. Beginning in 1947, the Atomic Energy Commission deliberately exposed thousands of miners to radiation while concealing the danger from them. Until the early 1960s, it frustrated efforts by the United States Public Health Service to require ventilation in the mines. In 1954, the Service calculated that ventilation would increase the cost of uranium by half a percent. It began a major epidemiological study of the effects of radiation. Even though it required miners to undergo periodic physical examinations and chest x-rays and to provide blood, urine, and sputum samples, it never told them the reason or the findings. The first four miners died of lung cancer in 1958, another five the following year, and nine more in 1960. More than 400 have died to date,

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which is five times as many as among a similar sample of unexposed men; hundreds of others are disabled. The federal government has paid no compensation thus far. Schneider, Uranium Miners Inherit Dispute's Sad Legacy, N.Y. Times, Jan. 9, 1990, at A1, col. 2.

Some of the 16,000 employees who have worked at the Department of Energy's Rocky Flats plant, the only source of plutonium in the country, have begun to claim workers compensation from the private employers operating the plant, Dow Chemical Company and, subsequently, Rockwell International Corporation. The DOE maintains that exposure to radiation has always been within permissible levels, and Rockwell claims that injuries are less than half as frequent as the average for all industrial plants. The former manager of radiation protection said at a 1988 hearing: "This is probably the safest place they'll ever work." However, 13 workers have died of cancer and another is dying of it; the records of all 14 workers showed repeated exposure to radiation through airborne plutonium and breakdowns in protective equipment.

Donald Gabel began work as a janitor at Rocky Flats in 1970, when he was 21. Three weeks later, a superior told him to tear construction tape from a contaminated tank. He found the tape hot to the touch; his face, hair, and hands displayed 2,000 counts of alpha radiation per minute. Later he operated a furnace that melts plutonium, for which he received an additional 15 cents an hour "hot pay." He spent up to 40% of his day with his head six inches from a pipe posted with a warning sign "Do Not Loiter" and which the monitors showed to be radioactive. However, his supervisor told him that radiation would not hurt his head. He died of a brain tumor in 1980. Schneider, Decades of Plutonium Peril at an Arms Plant, N.Y. Times, Nov. 18, 1989, at 10, col. 1.

During the 23 years John Schamper worked at Rocky Flats, he was injured or contaminated at least 40 times. In 1965 he was hit with radioactive steam which left his face, neck, and left arm displaying 25,000-50,000 counts of radiation per minute. He was given saline transfusions and calcium to try to flush the plutonium out of his body. By 1974, radiation had deformed his blood chromosomes. He died of lung cancer in 1984. The Rocky Flats plant has been closed for the last thirteen months as federal investigators study its contamination of the environment. Id.

The Rocky Flats plant also has contaminated the surrounding environment, most dramatically in two fires in 1957 and 1969, which together consumed more than 2200 pounds of plutonium, but also through leakage of 5200 barrels of liquid plutonium--a miniscule amount of which is sufficient to cause cancer. The government, Dow Chemical, and Rockwell International settled a 1978 lawsuit by adjacent landowners for more than $9 million but required that its terms remain secret. Schneider, Weapons Plant is Pressed for Details of Toll on Health, N.Y. Times, Feb. 15, 1990, at A22, col. 1. Evidence before a special panel of the Department of Energy asserted that in 1986 and 1987 Los Alamos officials pressured an epidemiologist to suppress or alter his findings of abnormally high cancer rates at the Rocky Flats Plant. Dr. Gregg S. Wilkinson, now associate professor of epidemiology at the University of Texas Medical Branch in Galveston, said he was told he "should be writing to please the Department of Energy because they were the customer." In the late 1970s, the Department of Energy fired Thomas Mancuso, an epidemiologist from the University of Pittsburgh who had published a study finding unusually high rates of cancer among workers at the Hanford Reservation nuclear site in Washington. The present panel has recommended that monitoring of worker health in the nuclear weapons industry should be transferred out of the Department of Energy. Schneider, Panel Questions Credibility of Nuclear Health Checks, N.Y. Times, Feb. 28, 1990, at A20, col. 5.

For more than 40 years, the government has concealed information concerning accidental radiation exposure of eight scientists involved in the development of atomic bombs after World War II at Los Alamos Scientific Laboratory in New Mexico. Approximately 220,000 American military personnel were exposed to radiation at Hiroshima or Nagasaki or in subsequent atmospheric tests; 9600 have filed claims against the Veterans Administration, but only 812 have been compensated. In October 1989, a federal judge ruled for the first time that workers at the Nevada test site could claim for exposure; 220 joined the action. Earlier that year, the government finally acknowledged radioactive emissions from the Fernald, Ohio nuclear weapons plant and offered to pay $73 million to the 24,000 neighbors affected. Honicker, America's Radiation Victims: The Hidden Files, N.Y. Times, Nov. 19, 1989 (Magazine) at 39.

[FN99]. See F. CULLEN, W. MAAKESTAD & G. CAVENDER, CORPORATE CRIME UNDER ATTACK: THE FORD PINTO CASE AND BEYOND (1987).

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[FN100]. See Fisher v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466 (1986); P. BRODEUR, OUTRAGEOUS MISCONDUCT: THE ASBESTOS INDUSTRY ON TRIAL (1985). In the settlement following Johns-Manville's "bankruptcy," a trust was created in 1988 through contributions of $155 million from JohnsManville and $530 million from its insurers. As of August 14, 1989, $515 million had been paid to settle 12,992 cases. A June 1989 financial statement indicated that another $136 million in claims had been accepted but not paid. Operating expenses for the first six months of that year exceeded $13 million. Consequently, the trust is almost exhausted. Over 93,000 claims are still pending, another 7000 are expected by the end of this year, and some 200,000 are anticipated altogether. Given the rate at which Johns-Manville is contributing to the fund, some claimants may not be paid for 25 years after they file. Labaton, Manville's Trust Fund Runs Short, so Asbestos Victims May Have to Wait, N.Y. Times, Oct. 24, 1989 at A8, col. 1.

[FN101]. See S. SPEISER, LAWSUIT 420, 557 (1980).

[FN102]. See generally P. TAYLOR, THE SMOKE RING: TOBACCO, MONEY, AND MULTINATIONAL POLITICS (1984) (investigating the political and economic mechanisms of the tobacco industry which enable it to prosper). A study by the California Department of Health Services estimated that the total economic cost to Californians of smoking was $7.1 billion a year: $4.1 billion in medical costs, $2.2 billion in lost future earnings from premature death, and $800 million in lost productivity due to disability. Smoking accounted for 16% of all adult deaths and 14% of all hospitalizations. Scott, Smoking Costs State's Taxpayers Billions a Year, Report Indicates, L.A. Times, Nov. 3, 1988, § 1, at 3, col. 5.

Guns are another dangerous product that tort law fails to control. An epidemiological study estimated that gunshots cause 62,075 people a year to be hospitalized at a cost of $429 million in hospital expenses alone, 86% of which is borne by taxpayers. Martin, Hunt & Hulley, The Cost of Hospitalization for Firearm Injuries, 260 J. A.M.A. 3048, 3049-50 (1988); see Lewin, Gunshots Cost Hospitals $429 Million, Study Says, N.Y. Times, Nov. 29, 1988, at A16, col. 5.

[FN103]. See J. GIBBS, CRIME, PUNISHMENT, AND DETERRENCE 117-19 (1975); Punishment and Deterrence: Theory, Research, and Penal Policy, in LAW AND THE SOCIAL SCIENCES 319 (L. Lipson & S. Wheeler eds. 1986); Paternoster, Decisions to Participate in and Desist from Four Types of Common Delinquency: Deterrence and the Rational Choice Perspective, 23 LAW & SOC'Y REV. 7 (1989).

[FN104]. See Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87.

[FN105]. See, e.g., Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4 (1983) [hereinafter Landscape of Disputes]; Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986). The number of medical malpractice claims, as well as the size of jury awards and the costs of settlement, actually decreased in 1988 after rising steadily for a decade. Freudenheim, supra note 93.

[FN106]. "A 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways." Fed. R. Civ. P. 23(b)(3) advisory committee's note. Agent Orange is the exception, not the rule. Even in that case, many victims were not included in the settlement. P. Schuck, Agent Orange on Trial 226-34 (enlarged ed. 1987).

[FN107]. President Bush epitomized this attitude in his speech for the centennial of the Johns Hopkins University School of Medicine in Baltimore, February 22, 1990. "It is estimated that 40 to 70 percent of the causes of premature death in America are preventable deaths--unnecessary deaths. And common sense tells us what that means. It's not complicated. Eat sensibly. Exercise. Wear seatbelts. Don't smoke and if you do smoke, stop. Don't abuse alcohol and don't use illegal drugs. . . . [T]he best prescription for better health in America is a strong, daily dose of individual responsibility." Address by President George Bush, Johns Hopkins School of Medicine Centennial, Release From Office of the Press Secretary, at 3-4 (Feb. 22, 1990). Bush also extolled a quintessential example of heroic medicine, Dr. William Halsted, an early Hopkins faculty member whom Bush

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characterized as "a kinder, gentler surgeon, if you will. But he was not without boldness. And Halsted conceived and perfected a daring feat of surgery: the radical mastectomy, that to this day saves the lives of thousands of women afflicted with breast cancer." Id. at 3. In fact, the National Cancer Institute repudiated radical mastectomy as the preferred treatment in the vast majority of cases in 1979, and today it is performed in only about 5% of breast cancer operations. BOSTON WOMEN'S HEALTH COLLECTIVE, THE NEW OUR BODIES, OURSELVES 533 (1984) (citing 2 National Cancer Institute, NIH Consensus Development Conference Summary, The Treatment of Primary Breast Cancer: Management of Local Disease, no. 5 (June 1979)).

The United States has fallen to twentieth place among developed countries in infant mortality. The rate in Washington, D.C. and Philadelphia is worse than that in third world countries like Jamaica and Costa Rica. The difference between black and white infant mortality in the United States is the greatest it has been since record keeping began 50 years ago. Scott, U.S. Slips Badly in Infant Mortality Fight, Panel Says, L.A. Times, Mar. 1, 1990, at A1, col. 1. The proportion of babies born in the United States whose birth weight is so low as to place them at risk (less than 5 pounds 8 ounces) rose 2.4% from 1985 to 1987 after declining steadily during the decade 1975 to 1985. The proportion whose birth rate is very low (less than 3 pounds 4 ounces) rose throughout that period by a total of 6.8%. The former are at least 5 times more likely than the average baby to die in the first year; the latter are at least 90 times more likely to die. Black babies are more than twice as likely as white to have low birth weights, a difference that has grown steadily in the last 15 years. Birth Weight Trend Causes Concern, N.Y. Times, Mar. 13, 1990, at C5, col. 3. One-fourth of the children in Southern California, and half of those in Los Angeles-Long Beach, are believed to have levels of lead in their blood that can cause behavioral problems and affect mental performance. Dolan & Abramson, Lead Levels Put 25% of Southland Children at Risk, L.A. Times, Mar. 6, 1990, at A1, col. 4.

[FN108]. Reichstein, Ambulance Chasing: A Case Study of Deviation and Control Within the Legal Profession, 13 SOC. PROBS. 3, 7 (1965).

[FN109]. L. DEITCH & D. WEINSTEIN, PREPAID LEGAL SERVICES 16-17 (1976).

[FN110]. A Ford Escort collided with a tractor trailer. The two girls in the front seat of the Ford suffered broken legs; one was wearing a seat belt. The two boys in the back seat were wearing lap seat belts. One died from internal bleeding when the seat belt severed his abdominal artery; the other, 14 year-old Jimmy Garrett, was paralyzed from the waist down. He sued Ford and won a $3.3 million verdict. Larry Garrett, his father, said: "I became angry because Ford refused to admit to anything. I sat there three weeks through the trial. It was like they were above everybody else, even after the jury came in. Ford didn't care. They really didn't care." His lawyers subsequently filed a petition with the United States Department of Transportation seeking a recall of the 1.7 million Ford Escort and Mercury Lynx automobiles with lap belts in the rear seat. Ordeal of Son's Auto Injury Spurs Father to Seek a Recall, N.Y. Times, Jan. 17, 1988, § 1, at 39, col. 5.

Michelle Snow, seven years old, was in her front yard in March 1987 when another child threw a lawn dart, which embedded itself in her brain, killing her. Her father, David, spent the next year trying to persuade the Consumer Product Safety Commission to ban lawn darts by March 6, 1988, which would have been her eighth birthday. He told a sympathetic Senate subcommittee staff member:

My daughter's dead. She used to bring me home notes like yours [gesturing to a child's crayon drawings on the aide's bulletin board]. Nobody knows what it's like who hasn't lost a child. I wake up miserable. I go to bed miserable, and it's going to happen to other people unless we do something. I'm here with my February house payment--that bought my airline ticket. I've spent $12,000 on this. My wife doesn't work. I only make $30,000 a year.

Baker, Grieving Father Is Given a Bitter Lesson in Civics, L.A. Times, Mar. 3, 1988, § 1, at 26, col. 2. The lawn dart manufacturers naturally opposed the ban, and the Commission compromised on improved warnings. Snow said: "It sickens me. I can't verbalize it. They defer and defer--I'll never understand it. These darts killed my child. . . . I come here and it's like I came to a foreign planet. What happened today is an outrage." Id. at 27, col. 1.

[FN111]. When a Japan Airlines plane crashed near Tokyo killing all passengers, the president of the company

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travelled throughout the country attending meetings of bereaved relatives in order to extend his personal apologies. Wagatsuma & Rosett, supra note 23, at 488.

Leslie Bender has advanced the radical and provocative idea that those who inflict injury should themselves care for their victims. Thus, corporate executives who made the "decision for accidents" would have to render care to those injured by like enterprises or products. Her argument challenges basic assumptions about the division of labor--that caring is for women and commodified caring for women of color. Bender's proposal would profoundly alter corporate attitudes toward risk. Bender, Blaming the Victim: Some Thoughts About the Liability Crisis, Mass Torts, Power, and Responsibilities, 1990 DUKE L.J.--(forthcoming).

[FN112]. The criminological theory of general deterrence asserts that deviant behavior can be controlled by increasing the penalty to compensate for the uncertainty of punishment.

[FN113]. All these doctrines are well known, except perhaps "dangerous jobs." Although assumption of risk was abolished in the workplace by workers' compensation, it has reemerged when some workers have sued third parties in tort. See, e.g., Maltman v. Sauer, 84 Wash. 2d 975, 530 P.2d 254 (1975) (involving helicopter rescue unit); Nelson v. Hall, 165 Cal. App. 3d 709, 211 Cal. Rptr. 668 (1985) (involving veterinarian).

A strong plea to stop blaming victims has come from an unlikely source: President Bush. In a speech to a conference sponsored by the National Leadership Coalition on AIDS, he said:

There is only one way to deal with an individual who is sick: with dignity, compassion, care, confidentiality and without discrimination. . . . We don't spurn the accident victim who didn't wear a seat belt. We don't reject the cancer patient who didn't quit smoking cigarettes. We try to love them and care for them and comfort them.

Hilts, Bush, in First Address on AIDS, Backs a Bill to Protect Its Victims, N.Y. Times, Mar. 30, 1990, at A1, col. 3.

[FN114]. Ronald Reagan perfectly reflected and strongly reinforced these beliefs. He dismissed the problem of homelessness with the assertion that some people always will live in the streets by choice. "They make it their own choice for staying out there. There are shelters in virtually every city, and shelters here, and those people still prefer out there on the grates or the lawn to going into one of those shelters." He had the same response to the problem of unemployment. There were "hundreds of ads" in the classified section of the Washington Post. "That means there are employers looking for people to go to work." Roberts, Reagan on Homeless: Many Choose to Live in the Streets, N.Y. Times, Dec. 23, 1988, at A26, col. 3.

The chimera of choice is even more tragically delusional in the Third World. In Pagsanjan, the Philippines, a town of 22,000 approximately 40 miles southeast of Manila, as much as a third of the youth are engaged in prostitution, both heterosexual and homosexual. Parents encourage it and are proud of the money and gifts their children receive. When the Council of Citizens for the Protection of Children sought to expose and stop the sex trade, they were vilified and threatened. When the Immigration Commission arrested foreign panderers, an aide to the mayor said: "Why do the raids here? They are just creating bad publicity for our town." Mydans, In a Philippine Town, Child Prostitution, Despite Protests, Is a Way of Life, N.Y. Times, Feb. 5, 1989, § 1, at 3, col. 1.

South Korea provides more than half of the foreign babies legally adopted in the United States each year: 6150 in 1986, and 5742 in 1987 (many adopted babies also enter the country illegally through Mexico). Most of these babies are born to unmarried women, often recent rural migrants to urban factories, naive about sex and ignorant of birth control; illegitimacy strongly taints the entire family in Korean culture. American adoptive parents pay about $4000, which includes transportation, medical expenses, payments to Korean foster parents, and agency fees. Chira, Babies for Export: And Now the Painful Questions, N.Y. Times, Apr. 21, 1988, at A4, col. 1. Choice?

[FN115]. The Federal Occupational Safety and Health Administration has cited Friction Division Products, Inc. of Trenton, New Jersey for exposing its workers to asbestos. Having found 15 times the acceptable levels of asbestos dust in the air and accumulations an inch deep on the floor, it posted notices throughout the plant warning of imminent danger. Some employees walked off the job, but the company had no difficulty keeping a work-

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